Improbably, the normally prosaic practice of probate law has recently gotten exciting. The cause? The proliferation of do-it-yourself wills.
Most online forms do not include state-specific language, and very few people fill them out correctly. Some types of omissions and ambiguities can even prevent the will from being probated altogether.
These little gems have caused family rifts and placed a plethora of probate assets in limbo. They can turn what should be a simple 5-minute prove-up hearing into years of expensive litigation. They are every probate lawyer’s dream.
If your estate planning consists of downloading some generic forms and filling in the blanks, then you need to be aware of some common problems.
Key Issues with Online Wills
1. Signing Issues
Do-it-yourself wills often are not properly executed. The Texas Estates Code has specific requirements for executing a will. There is a high risk that an internet form will not contain the appropriate execution language, that you and your witnesses will not sign it where required, or that the signatures will not be properly notarized.
2. Lack of Texas-Specific Language
Online wills are often drafted to be universal, meaning that they are not tailored for a particular state. They almost never include Texas-specific language. That means such big-ticket items as community property and independent administration do not make it into the document.
3. Incorrect Definitions
Texas has statutory definitions for words commonly used in estate planning documents. But many online wills include non-Texas definitions for words such as:
- Per stirpes/per capita distributions
- Personal property
- Children
4. Distribution Language Problems
Often, online forms contain blanks that they expect you to fill in for your distributions to beneficiaries. But without any experience in will interpretations, how do you know that your wording will pass muster? Did you remember to include instructions about what happens to the specific bequest of your Mustang to Uncle Robbie if you sell the Mustang before you die, or if Uncle Robbie dies before you do?
5. Missing Residuary Clause
Often forms fail to include a basic residuary clause that provides instructions for distributing any property not previously addressed by you in the will. If a will lacks a residuary clause, then the court will find that there is a partial intestacy, meaning that the remaining property will be distributed to your heirs, who may be different from your intended beneficiaries.
6. Executor Issues
Problems abound with this provision in online wills. Here are just a few:
- They may lack a place for you to name a successor executor in case the first one cannot serve.
- They fail to include the necessary language to take advantage of Texas’ short-cut probate procedures.
- They omit provisions for executor compensation or reimbursement of expenses.
7. Minors and Disabled Beneficiaries
The forms seldom have provisions that provide for guardians and standby trusts for minors and disabled beneficiaries who cannot, or should not, receive money directly.
8. Issues with Complex Matters
Online wills fail miserably when they are used for any situation out of the ordinary, such as:
- Blended families
- Taxes
- Asset protection
- Family businesses
- Business continuity
- Complex real estate issues
- Digital assets
Holographic Wills and Their Risks
I’ve focused on online forms, but the same points apply to a holographic will that you did in your own handwriting.
Conclusion: Review Your DIY Will
So, review your do-it-yourself will with the foregoing issues in mind and consider whether the quick, cheap route is truly the best option for you and your beneficiaries. If you find yourself uncertain, you may be setting the stage for expensive litigation and making probate lawyers very happy.
At Hammerle Morris Law Firm, we understand that estate planning requires careful thought, precision, and a personalized approach. If you’ve relied on do-it-yourself wills or online forms, our experienced attorneys are here to help you identify potential issues and ensure your wishes are fully protected. Whether you’re reviewing an existing will, addressing complex family matters, or updating your estate plan, we’re here to guide you every step of the way.
Schedule a consultation today to discuss how we can help secure your legacy and ensure your estate plan stands up to scrutiny, both now and in the future.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
